Paul A. Weidner v. State of Florida, (11th Cir. 2008)

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 3, 2008

No. 07-10611 THOMAS K. KAHN

Non-Argument Calendar CLERK

D. C. Docket No. 04-21681-CV-ASG

PAUL A. WEIDNER,

Petitioner-Appellant,

versus

STATE OF FLORIDA,

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,

James McDonough,

Respondents-Appellees.

Appeal from the United States District Court

for the Southern District of Florida

(January 3, 2008)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

Petitioner Paul A. Weidner, a Florida state prisoner proceeding pro se, appeals the dismissal of his federal habeas corpus petition, 28U.S.C. § 2254. The district court dismissed Weidner's petition as time-barred, 28U.S.C.

§ 2244(d)(1)(A), but then granted a certificate of appealability ("COA") as to the underlying constitutional claims raised in the petition.

A federal habeas petitioner must obtain a COA from the district court to appeal the denial of his § 2254 habeas petition. 28U.S.C. § 2253(c)(1)(A).

However, "[w]hen a district court dismisses a petition as time-barred, it is inappropriate to grant a COA on the [underlying] constitutional claim." Ross v. Moore, 246 F.3d 1299, 1300 (11th Cir. 2001). As a result, in Ross we vacated the order granting a COA and remanded to the district court "for the limited purpose of considering whether a COA should be granted on the question of whether appellant's habeas petition is time-barred." Id.

Here, the facts are identical to Ross. As a result, we vacate the order granting a COA and remand this case to the district court for the limited purpose of considering whether a COA should be granted on the question of whether Weidner's § 2254 petition is time-barred.

VACATED AND REMANDED.

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